The International Criminal Court and Darfur

A Perfidious International Statute

Two years ago the International Criminal Court started to investigate war crimes in the Sudanese conflict zone of Darfur. Klaus Dahmann spoke with the French international law expert and ICC Darfur Commission member Hadi Shalluf about the state of the investigations

The Sudanese government is per statute not obliged to work together with the International Criminal Court because Sudan did not ratify the statute

​​For four and a half years the International Criminal Court (ICC) has been up and running at The Hague. Unlike the tribunals for the former Yugoslavia and Ruanda, it is a permanent court not restricted to a certain region. One of the issues Chief Prosecutor Luis Moreno-Ocampo has been preoccupied with is the Darfur conflict, in which more than 200,000 people have died and more than two million refugees have fled the area, according to United Nations estimates.

Since 2005 Moreno-Ocampo has been pursuing the main perpetrators and those behind the worst massacres. The first arrest warrants are expected to be issued in 2007, possibly in the coming weeks.

Chief Prosecutor Luis Moreno-Ocampo has been taking on new cases at regular intervals, starting with the first investigations in Congo, Uganda, and the Central African Republic. Back then it was the ruling governments themselves who turned to The Hague for help.

Murder and plundering continues

Two years ago the UN assigned Ocampo to investigate war crimes in the Sudanese conflict zone of Darfur – against the wishes of Khartoum. Sudan initially blocked the court's inquiries. No surprise, says Hadi Shalluf from Paris:

In 2003 Luis Moreno-Ocampo was unanimously elected by the world's first permanent war crimes tribunal as its chief prosecutor - a key step in bringing to justice those responsible for the worst crimes against mankind

​​"The Sudanese government is per statute not obliged to work together with the International Criminal Court because Sudan did not ratify the statute. If Sudan recognizes the court, then the government must, of course, meet this obligation. But they have not yet said whether they will accept the court."

This makes the court's work much more difficult. And meanwhile the murder and plundering in Darfur continues. Given that the prosecution must rest its case first and foremost on the statements of witnesses to the crimes, many interviews should have been carried out in the refugee camps by now.

But what has emerged is a list of 51 names of suspected war criminals, which the former UN Secretary General Kofi Annan handed to the Chief Prosecutor in a sealed envelope already one year ago. The names have not yet been disclosed, but rumor has it that the accused are high-ranking members of all the parties to conflict in Darfur: leaders of the Janjaweed militias and various rebel groups, and even members of the Sudanese government.

Thin threads connecting The Hague and Khartoum

Khartoum has meanwhile begun making admissions. The Sudanese government has allowed investigators access to its Darfur files. And the government has told the Chief Prosecutor that 14 people have been arrested for war crimes in Darfur who may be turned over to The Hague. But so far the authorities in Khartoum have refused to name the 14 in custody, says Shalluf:

"They haven't said anything about the identities of those arrested. Perhaps they are Janjaweed, or perhaps members of other groups demanding independence for Darfur."

In order to answer these and other questions, Shalluf plans to travel to Sudan as soon as possible with Chief Prosecutor Ocampo. Only when all the relevant information has been obtained will The Hague decide whom it will bring a case against. Originally this decision was scheduled for mid-February of this year, but Shalluf has not confirmed the date. He is in general very reserved when it comes to making firm statements – due to fear that the thin threads connecting The Hague and Khartoum could easily unravel.

"It is a question of law, not opinion"

But on another matter Hadi Shalluf is eager to speak openly. The court's statute, he says, is not perfect. The UN Security Council is too powerful. It has the authority to hand over cases to the court – as it did for the first time with Darfur – but it can also stop cases from proceeding.

If the majority of Security Council members suddenly decided to suspend the Darfur proceedings, this might even mean that the judges must free the accused because they lack the authority to hold them in The Hague.

And even Sudan, which has until now refused to accept the ICC, may be able to take advantage of a loophole, according to Hadi Shalluf:

"If Sudan ratifies the statute in 2007, for example, then The Hague cannot try crimes that were committed before this ratification date. It is a question of law, not opinion."

It's a curious scenario, but theoretically possible: If the government in Khartoum were to sign the statute, this would be enough to stop most of proceedings immediately and permanently. Because then only crimes committed after this date could be tried in The Hague, and all perpetrators to date would come away scot-free.

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